Nothing prohibits an attorney from calling clients when departing a firm.
An associate in my law practice is leaving the firm. He is going to send letters to firm clients and I am going to send letters and give them a choice as to whether they want to remain with the firm or with the departing associate. Can I telephone the clients also?
The answer is clearly yes. Any time a lawyer leaves a firm, it creates a very difficult time for the law firm, and clients are sometimes placed in the middle. The departing associate or partner obviously wants as many clients to go with him or her as possible. The firm, similarly, would like to maintain those clients.
The decision is the client’s alone. The client can decide to either leave the firm with the departing associate or remain with the firm. A line of cases in the Pennsylvania Supreme Court and Superior Court have fairly well resolved how to handle this. The Pennsylvania Bar Association’s legal ethics committee has rather detailed opinions about what to do when an associate leaves a law firm. Anyone in that situation would be well advised to contact the committee and obtain a copy of both of those opinions.
The preferred method when associates or partners leave a firm is to allow a letter to be sent to the clients. The essence of the letter should explain to the client that someone is leaving and it is the client’s choice as to who they wish to continue as counsel. Usually, there is an attachment to the letter that allows the client to check off which firm or attorney the client prefers, i.e., the departing associate or the former law firm. It is a wise idea to always have a stamped, self-addressed envelope with that letter so it can be returned quickly.
Sometimes joint letters are sent. The letter is signed by both the departing associate and the firm and the client has the form to choose. Obviously, that is ideal, but rarely can lawyers agree to a joint letter. Usually when there is a departure and contact with clients, emotions run high for a couple of days and it is difficult to get anyone to act rationally.
Of course, when an associate or partner leaves, the contact and letters by the departing associate or partner cannot be made until the law firm has been given notice that the associate or partner is departing. The case law and ethics opinions are fairly clear for an associate or partner to notify clients in advance of notifying the firm would be a breach of the fiduciary and employment obligation they would owe to the firm. That could result in the return of the files and also result in a lawsuit for interference of business contracts.
Having briefly sketched some of the procedures, it must be pointed out there is no prohibition for the law firm to call the firm’s clients. Until the clients make a choice, the clients are the firm’s clients. The law firm can always call its clients.
Therefore, a wise firm will immediately have other lawyers who are going to be handling the case call a client and advise it that the file is being transitioned to it and to set up a meeting. Those telephone calls aid and assist in clarifying questions for a client and assist the client in making a decision in whether they wish to remain or depart.
It is imperative in these contacts, whether by letter or phone, not to say anything derogatory. Derogatory comments can only make things more difficult to resolve and at the same time can provide a basis for a libel or slander suit.
But the law firm can point out any major problems. For instance, if an associate is departing because he or she neglected files or missed statutes of limitations, that could be mentioned. But the best practice is not to say anything negative about the departing attorney. The best practice is to let the clients know that the firm is fully able and competent to continue to handle the file with or without the departing associate.
Of course, once the client makes its decision, the files have to be copied and given over to whomever is handling the case. There is a limit to when a lawyer can continue to call the client. Once the client makes the decision, perhaps the lawyer can make one more telephone call, but after that the calls have to stop if the client has decided to go to the new firm. There cannot be a continuous series of harassing calls to clients who have already made their choices.
Once decisions are made, then the secondary issue is to work out the fee arrangements between the old and new firm and work out repayment of the costs to the old firm. That is sometimes not an easy proposition.
In conclusion, there is nothing that prohibits a lawyer from calling his or her clients when an associate is departing to urge them to remain with the firm. But the language and comments must be appropriate and not derogatory.
In dealing with a departing associate or partner, every lawyer should remember practicing law is a long-term experience. The wise lawyer will not go out of his or her way to make enemies. That young associate, 10 years from now, may be a judge or a respected partner in a firm. There is no reason to forget friendships for a moment of disagreement. The fact that someone is leaving doesn’t make him or her an evil individual. The fact that he or she wants to take some of the firm’s clients is a normal reaction and is permissible if the client agrees.
Every lawyer should remember that and always treat each other with respect during the difficult situation of deciding who is going to continue with the files. By doing so, it makes it much easier to resolve these cases, particularly when the excitement and passion of the moment die down. Further, hopefully the friendship and collegiality will return between the lawyers.
Lawyers cannot gather Facebook information through deceptive means.
I am in the middle of a vigorously contested civil personal injury case. Can I pay one of my secretaries or an investigator or a third person to try to befriend the opposing party to get access to his or her private Facebook page?
Zealousness in representation is not a defense to conduct that is prohibited. While appreciating that the lawyer wants to zealously represent his or her client, there are bounds and limitations to the representation.
Every lawyer knows he or she cannot lie or misrepresent. Rule of Professional Conduct 8.4(c) and 4.1 clearly prohibit misrepresentations or fraud. A lawyer knows he or she cannot go to a potential witness and misidentify who he or she is. A lawyer can’t knock on someone’s door and suggest he or she is interested in buying someone’s house for the purpose of getting inside and learning information about the opposing party. These are obvious misrepresentations and could result in severe discipline depending on how long this misrepresentation or deceit was utilized by the lawyer and whether there was resulting prejudice.
Having said that, modern technology doesn’t lessen or change the old-fashioned concept of misrepresentation. Paying someone to befriend an opposing party to get on his or her Facebook is creating a falsehood and misleading the person. That obviously violates the rule against misrepresentation, Rule 8.4(c). Also, it violates Rule 4.2, which prohibits contact with a client represented by counsel without the lawyer’s consent.
Violating Rule 4.2 and/or misleading someone and violating Rule 8.4(c) are serious violations. Violation of these rules could well subject the attorney to very serious professional discipline, including long-term suspension.
The Philadelphia Bar Association also has issued an opinion concluding that such conduct using social media deceptively to gain information and access would violate Rule 8.4(c) and Rule 3.1(a).
Therefore, deception is deception. It doesn’t change whether it’s covered up or rewritten in an electronic format. Any lawyer who is using and gaining information, whether the old-fashioned way or through electronics, should be aware he or she could face serious discipline and also serious sanctions in the underlying civil case.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.